A new state law is providing a two-year window for victims of child sexual abuse to sue for damages, no matter how long ago the abuses occurred in Hawaii.
And some attorneys say such lawsuits could not only expose offenders, but also encourage other victims to come forward with claims that might lead to criminal prosecution.
“It’s historic in terms of public policy,” said Jeff Anderson, a St. Paul, Minn.-based attorney who has represented victims of sexual abuse across the country. “It’s one of the most important public policy developments that can be made in this state and in this country in terms of child protection.”Anderson was among speakers at a seminar on Civil Justice for Victims of Crime in Hawaii held last week at the Cameron Center in Wailuku. About 50 people attended, including attorneys, counselors and social services providers who work with victims of sexual abuse.
Maui County First Deputy Prosecuting Attorney Robert Rivera, who was among those attending the seminar, said the new law allows victims whose criminal cases didn’t go forward because the statute of limitations had expired to now seek damages through another avenue.
“It affords those victims a chance to go after their perpetrators in the civil court,” Rivera said. “I think that’s a really good thing.”
Even in cases where perpetrators were criminally prosecuted, victims still could sue under the new law.
“We do look forward to working with the civil bar on providing service to the victims,” Rivera said.
Introduced by state Sen. Maile Shimabukuro, the bill creating the two-year window for child sexual abuse victims in Hawaii to file civil court actions was signed into law in April and expires on April 24, 2014.
Under the law, any survivor of child sexual abuse that occurred in Hawaii can file civil court actions against the person who committed the offense, Anderson said. He said that in some instances, civil actions can also be brought against the offender’s employer or another entity that failed to protect the victim from the abuse. The law provides immunity for government agencies.
“The survivor can expose the offender that offended him 40 years ago that may be teaching in the school right now,” Anderson said. “It gives survivors the opportunity to confront the reality of their experience, to expose that offender in the community and go through some mechanisms to regain their power.
“There also is the ability to sue the perpetrator’s employer if there is some evidence of gross negligence by the employer or another entity that was charged with some responsibility for the care and control of the child and if there’s some reason to think they should have known.”
Anderson said similar laws temporarily lifting the statute of limitations for lawsuits by child sexual abuse survivors previously were enacted in California, Delaware and Minnesota.
In California, the law led to lawsuits naming “200 to 250 offenders who had never been exposed before,” Anderson said.
“It’s been very, very effective in other places,” said Jeff Dion, director of the National Crime Victim Bar Association.
On average, it takes children 30 years to disclose that they have been sexually abused, he said.
During that time, offenders may continue sexually abusing other children, Dion said.
“Even when they’re 70 and 80 years old, in walkers and wheelchairs, they’re still abusing kids,” Dion said. “Why? Because pedophiles don’t retire.”
He said that by filing lawsuits against offenders, even decades later, victims can in some cases help stop sexual abuse by spurring other victims to report abuse that may be more recent.
“Other victims will come forward who are within the statute of limitations,” Dion said. “That is how the civil system can help the criminal system – by helping people to come forward.”
Anderson said victims suing can be anonymous “but still name the perpetrator.”
Dion said victims seeking information or referrals to attorneys who are experienced in handling such cases can call the National Crime Victim Bar Association at (202) 467-8753 or send email to firstname.lastname@example.org. Information is also available online at www.victimbar.org or abusedinhawaii.com.
“This window is open for only a limited amount of time,” Dion said.
“If we don’t reach the survivors and they miss it, it’s heartbreaking,” Anderson said.
Dion said there are advantages to civil litigation, including a different burden of proof than in criminal cases. Instead of the proof beyond a reasonable doubt required in criminal trials, civil trials require proof by the preponderance of evidence.
“It’s an easier burden to prove,” Dion said. “An easier hurdle to clear.”
He cited the case of O.J. Simpson, who was acquitted of two counts of murder in the June 1994 deaths of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman, but later held liable for damages in a civil trial.
“The civil system offers more opportunities for personal justice,” Dion said.
In some cases, victims may find it worthwhile to sue even when they don’t collect on judgments, said Seattle attorney Mark Leemon, who has represented victims of violent crimes.
“Every now and again, it’s worth bringing the lawsuit for the power reason without the money,” he said.
Leemon said one client awarded $1.6 million “was thrilled” despite not receiving any of the money. “She had a judgment that made him responsible for what he had been denying for 35 years,” Leemon said. “It was worth the time and effort to pursue.”
Joelle Casteix, western regional director for the Survivors Network of those Abused by Priests, or SNAP, was among victims who sued during the civil window in California. In addition to money, her 2005 settlement gave her access to documents including the signed confession by the choir director who had sexually abused her while she was a teenager attending a Catholic high school in Orange County, she said.
“I don’t care about the money,” she said. “For the first time in 20 years, I had dignity.”
Dion said there are disadvantages to lawsuits, including trauma to the victim, and the expense and slow pace of civil litigation. Victims need to decide on their own whether to pursue civil cases, he said.
In addition to creating the two-year window, the Hawaii law increases the time limit for child sexual assault victims to bring civil lawsuits. Instead of two years under previous law, such victims now can file lawsuits up to eight years from when they turn 18 or three years from when the victim realizes his or her injury is due to being sexually abused as a child.
Rivera said the state criminal statute allows child sexual assault charges to be brought within six years from the time the victim turns 18 for Class A felony offenses and within three years of the victim turning 18 for other offenses.
Lila Fujimoto can be reached at email@example.com
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